Lakeshore Tenants Union v. Lakeshore Apartments









Filed 4/3/17 1918 Lakeshore Tenants Union v. Lakeshore Apartments CA1/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


1918 LAKESHORE TENANTS UNIONet al.,
Plaintiffs and Respondents,
v.
LAKESHORE APARTMENTS, LP, et al.,
Defendants and Appellants.


A147950

(Alameda County
Super. Ct. No. RG15774399)


Defendants, the owners and managers of a 38-unit apartment building at 1918 Lakeshore Avenue in Oakland (collectively, owners), appeal from the denial of their anti-SLAPP motion (Code Civ. Proc., § 425.16, subd. (b)(1))[1]seeking to strike the complaint brought by the “tenants union” and a large number of tenants of the apartment building (collectively, tenants) alleging multiple acts of harassment and misconduct designed to evict tenants and to cause tenants to terminate their tenancies.The tenants’ complaint contains 10 causes of action preceded by a four-page unnumbered “introduction,” which tenants concede on appeal should be stricken, and 23 numbered paragraphs over16 pages of further introductory allegations incorporated into each of the causes of action. Spread throughout the complaint are allegations of both protected and unprotected activity within the meaning of the anti-SLAPP statute.
In a carefully crafted order considering each cause of action separately, the trial court relied in part on the so-called Mann rule (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90) that if a plaintiff can show a probability of prevailing on any part of a claim, neither the claim nor portions of the claim may be stricken even if portions are based on protected activity that the plaintiff does not substantiate. Six months after the trial court’s order, our Supreme Court disapproved Mann, holding that “When the Legislature declared that a ‘cause of action’ arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief. . . . By referring to a ‘cause of action against a person arising from any act of that person in furtherance of’ the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. [Citation.] Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity. Unless the plaintiff can do so, the claim and its corresponding allegations must be stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 395 (Baral).)
We do not agree with the owners that this clarification of the law requires the reversal of the trial court’s order with respect to six of the ten causes of action, but we do agree that the trial court’s ruling must be vacated as to four of them and remanded for reconsideration in view of the holding in Baral.
Background
The “introduction” to the complaint alleges, among other things, that in the past two years tenants have been served with “unsuccessful bad faith unlawful detainers,” “unsuccessful bad faith lawsuits claiming their leases are fraudulent,” “bad faith . . . notices terminating their tenancies,” “bad faith water-shut offs to the entire apartment building,” and “bad faith . . . notices to enter their apartments for ‘inspection.’ ”The introduction also alleges the tenants have been “subject to an ongoing campaign of harassment” including “leaving condoms on the car of one of the female tenants,” “illegally entering the apartment of another tenant/plaintiff in order tosmash glass kitchenware on his floor as a ‘message’ ” and “causing the collapse of another tenant/plaintiff’s bathroom ceiling.” Tenants begin their respondents’ brief by “mak[ing] one thing clear” that this portion of the complaint was “never intended to be an actionable portion of the complaint” and stipulate that this court may strike the introduction in its entirety.
In the following numbered paragraphs that precede the designated causes of action, the pleading elaborates on numerous alleged acts of harassment and abuse, including refusal to accept rent checks, posting refused checks to the front door of tenants’ units, serving “legal looking notices to plaintiff/tenants” containing false claims, shutting off water and electric service, failing to maintain units in a habitable condition, “[c]onducting invasive, repeated, unjustified and fraudulent ‘unit inspections’ without a factual or legal basis to do so,” operating hidden video cameras disguised as carbon monoxide detectors, and more. The numbered introductory paragraphs also allege that owners “waited until approximately ten weeks after purchasing the apartment building to begin serving notices of purported lease violations,” served “patently fraudulent seven-day notices . . . and three-day notices” that “were ‘hollow threats’ which were not contemplated in goodfaith and under serious consideration of litigation,” served (not in the manner required by statute) on a particular tenant a “three-day notice to pay rent or quit” based on the tenant’s alleged failure to pay rent when the tenant’s rent check was for five cents more than the rent due, served on another tenant a “seven-day notice” falsely alleging noncompliance with a lease provision not contained in the lease, and improperly served other tenants with three-day notices to pay rent or quit. All of these allegations are incorporated in the following 10 causes of action.
The trial court denied owners’ special motion to strike some of the enumerated causes of action on the ground they did not arise out of protected activity, thus failing to satisfy the first prong of the anti-SLAPP analysis. The motion was denied as to other causes of action on the ground that tenants satisfied the second prong of the analysis by making a prima facie showing of their ability to prevail with respect to at least one alleged form of harassment on which the cause of action was based. Proper disposition of this appeal requires separate consideration of each of the 10 causes of action.
Discussion
The basic analysis required by a special motion to strike under section 426.16 is succinctly stated in Baral. “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at p. 384.) The first prong is not satisfied if the allegations of protected activity are “merely incidental” or “collateral.” (Id. at p. 394.) The second prong is satisfied if “the plaintiff has stated a legally sufficient claim and made a prima facie showing sufficient to sustain a favorable judgment.” (Id. at pp. 384-385.)
The trial court held that the first prong of this analysis is not satisfied by the fourth, fifth, sixth, ninth and tenth causes of action of the complaint. The trial court was correct in this respect and nothing in Baral affects this conclusion.As to the fourth cause of action, labelled “tortious invasion of privacy,” the trial court properly denied the motion to strike because the cause of action “is premised on conduct such as video surveillance and revealing personal financial and/or banking information by posting rent checks on tenants’ doors.”Such conduct admittedly is not protected activity to which the anti-SLAPP statute applies.
As to the fifth cause of action, labelled “tortious breach of the warranty of quiet enjoyment,” and the sixth cause of action, labelled “tortious breach of the warranty of habitability,” the trial court correctly reached a similar conclusion. The court observed that these causes of action “could be construed as including the allegations as to the various court proceedings and the service of the notices to quit,” which is protected activity. “Nevertheless,” the court continued,“given the focus of the ‘tenant’s quiet enjoyment of the unit’ and the lengthy allegations as to matters such as video surveillance, shutting off water and electricity, failing to maintain the units in habitable condition, threatening and harassing conduct . . . including late night visits and phone calls, unit inspections, fumigation and the like . . . , it appears that the allegations as to the lawsuits and notices are at most ‘merely incidental’ to” these causes of action. The trial court correctly characterized these two causes of action.Other than the commonplace unspecific incorporation by reference of “paragraphs 1 through 23 of this complaint,” neither cause of action makes any explicit reference to the unlawful detainer proceedings or procedures and both are reasonably read to be based on the myriad other forms of alleged harassment. The fifth cause of action alleges that “Such conduct was engaged in by the [owners] as part of their illegal scheme to cause all plaintiffsto vacate their rent controlled apartments and replace them with ‘market rate’ tenants.” The sixth cause of action alleges that the owners “had actual and/or constructive notice of said defective conditions but willfully failed and refused to correct them.”These allegations cannot reasonably be understood to refer to judicial proceedings. The references to such proceedings in the numbered introductory paragraphs can fairly be regarded as merely incidental or collateral, so that the trial court properly held the first prong of the anti-SLAPP statute not satisfied as to these causes of action. (Baral, supra, 1 Cal.5th at p. 394; Perigrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673.)
The trial court held that owners had not satisfied their burden under the first prong of the analysis as to the ninth cause of action, which alleges that the owners demanded and received unlawful rent increases, and the tenth cause of action which “expressly seeks an injunction against conduct such as shutting off utilities, harassing ‘unit inspections’ and unnoticed entries, as opposed to seeking to enjoin the filing of lawsuits or other similarly protected activity.” The owners make no argument that either of these causes of action comes within the anti-SLAPP statute.
The trial court held that the first prong of the anti-SLAPP analysis was satisfied as to the first, second, third, seventh and eighth causes of action because each is based at least in part on protected activity. This determination is unchallenged and undoubtedly correct. The court denied the motion to strike these causes of action based on its finding that tenants made a sufficient prima facie showing of their ability to prevail on each of these causes of action.
The first cause of action, labelled “attempted wrongful eviction,” alleges that the owners “unlawfully conspired to evict all plaintiffs except Sharif in violation of California common and statutory law and the Oakland rent control ordinances,” among other statutory violations. The trial court denied the motion to dismiss this cause of action on the ground that even if the litigation-based conduct on which the cause of action is partially based is privileged, the owners made a prima facie showing of their ability to prevail based on other conduct on which the cause of action is also based, such as the wrongful termination of utility service. Based on the Mann rule, the court therefore denied the motion. However, under Baral, the court was required to determine whether tenants made a prima facie showing of their ability to prevail with respect to the litigation conduct on which the cause of action is partially based and, if not, to strike the allegations of protected activity from the complaint. Remand for reconsideration applying the approach specified in Baral therefore is necessary.
The second cause of action, for malicious prosecution of several unlawful detainer actions and several cross-complaints alleging fraud and other claims, was denied on the ground that tenants made a prima facie showing of their ability to prevail on all of these claims. This determination did not rely on Mann but found tenants’ showing sufficient as to all of the allegations on which the cause of action is based.As the parties acknowledged, the litigation privilege does not apply to defeat a malicious prosecution claim. (Ribas v. Clark (1985) 38 Cal.3d 355, 364.)Owners argue that tenants’ showing was nonetheless insufficient because owners had probable cause to file their claims, a determination that is for the court to make. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164.) However, the trial court properly recognized that factual issues as to what the owners knew or did not know underlie the determination of probable cause and the court may not weigh the evidence or resolve factual issues in ruling on a special motion to strike. (Baral, supra, 1 Cal.5th at pp. 384-385, 392 [“at the early stage contemplated by section 425.16, [defendants may not] test the evidentiary sufficiency of claims arising from the kinds of activity given special protection by the anti-SLAPP statute”].)Therefore, the court properly denied the motion to strike the second cause of action.
The third cause of action is for retaliation in violation of Civil Code section 1942.5 and provisions of the Oakland Municipal Code.Subdivision (c) of section 1942.5, makes it unlawful for a landlord “to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law.” Tenants made a prima facie showing that the owners violated this provision but the owners contend tenants failed to establish their ability to prevail because at least some of the alleged retaliatory acts are protected by the litigation privilege, Civil Code section 47, subdivision (b). The trial court recognized a conflict in appellate decisions as to whether the litigation privilege may bar a cause of action for retaliation under Civil Code section 1942.5. (Compare Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323,328-335 with Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1492-1493 and Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1214-1215, disapproved on other grounds in Baral, supra, 1 Cal.5th at p. 396, fn. 11.) The court concluded that in Banuelos, the Court of Appeal had more fully and persuasively analyzed the issue, concluding that the more specific provisions of section 1942.5 are not negated by the general litigation privilege. “The Legislature ‘makes clear’ that it does not intend the enforcement of a statute to be barred by the litigation privilege when the statute ‘is more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.’ ” (Banuelos, supra, at p. 332, citing Action Apartment Assn. Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1246.) “Section 1942.5 . . . specifically creates a cause of action for, among other things, bringing a certain kind of lawsuit. . . . The Legislature presumably would not have included these protections in section 1942.5 if it intended that they be nullified by the litigation privilege.” (Banuelos, supra, at p. 335.)We agree with the reasoning in Banuelos and with the conclusion of the trial court here that insofar as the third cause of action is based on the violation of section 1942.5, tenants have made a sufficient showing of their ability to prevail and the claim should not be stricken.
However, insofar as the third cause of action is also based on the alleged violation of the Oakland ordinance, the situation is different. The litigation privilege, enacted by statute, takes precedence over the local ordinance, so that tenants maybe unable to recover for violation of the ordinance.Thus, under Baral,allegations basing the cause of action on protected activity in violation of the Oakland ordinance must be stricken if tenants cannot overcome the litigation privilege.
The seventh and eighth causes of action allege intentional and negligent infliction of emotional distress. While acknowledging that the litigation privilege may preclude recovery on these causes of action insofar as they are based on bringing the unlawful detainer actions, the court denied the motion to strike because “the causes of action are not based solely on the bringing of” those actions. The denial of the motion to strike any portion of these causes of action must be reversed under Baral, and the matter remanded so that the offending allegations may be stricken.
Disposition
The order denying the special motion to strike is affirmed as to the second, fourth, fifth, sixth, ninth and tenth causes of action. The order is reversed with respect to the first, third, seventh and eighth causes of action, and the matter is remanded for further proceedings in conformity with Baral,supra, 1 Cal.5th 376and this opinion.In addition to other provisions that must be stricken, the four-page unnumbered “introduction” to the complaint shall be stricken. The parties shall bear their respective costs on appeal.






_________________________
Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.











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A147950

[1] “SLAPP” is an acronym for “strategic lawsuit against public participation.”